One of the fascinating intricacies of immigration law in this country is that different parts of the law are found in various different places, which adds to the general mystique. For some years now EU rules about immigration have been confined to the Immigration (EEA) Regulations – regulations written by the Home Office or its agencies which attempt or purport to interpret EU law for the benefit of Home Office decision-makers and indeed anyone else who may be interested.
But this will no longer be the case: from this month, August 2018, a new section is being introduced into the UK Immigration Rules called “Appendix EU”, which will make provisions for EU nationals and their family members under the post-Brexit regime. (Readers may be interested to know that, despite various dramatic and extraordinary headlines in the media, Brexit still trundles on remorselessly.)
The new scheme has been outlined in a nicely-written Home Office publication called “EU Settlement Scheme: Statement of Intent” and the associated new immigration rules come in the latest Statement of Changes to the Immigration Rules: (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/727752/CCS207_CCS0718116274-001_Cm_9675_Immigration_Rules_Accessible.pdf if you should want to read the primary source).
Deep students of Brexit will know that Brexit itself is due to happen on 29 March 2019 but there is an associated “implementation period” which will run until 31 December 2020. This seems to mean different things to different people (mostly politicians) in different contexts, but in the immigration context the meaning is clear: nothing will happen to the immigration status of EEA migrants and their family members until then, and even after that they will retain some rights.
The scheme thus created is so far only a pilot scheme, and it is limited to students and workers who study at or work in certain establishments in Liverpool. If the pilot scheme is successful presumably it will be widely extended.
The new rules provide for limited leave to remain to be granted for five years under the new scheme (like the current EEA Residence Card) and also create provisions for settlement. But – in a really exciting change – settlement under the new scheme will be called “indefinite leave to remain”, not “permanent residence”, as currently. This is presumably designed to reflect the relative “Britishness” of the new status. And those who hold permanent residence under EU law will be required to exchange this (free of charge incidentally) for the new indefinite leave to remain status.
This is something that we will have to get used to: the current dichotomy between British rules indefinite leave to remain and European rules permanent residence will vanish but, as Shakespeare would probably have pointed out had he been an immigration adviser, a rose by any other name would smell as sweet.
The eligibility requirements for these statuses are broadly similar to how they are at the moment and the application processes look much simpler. And, very interestingly – in the pilot trial version of the new rules at any rate – there is no mention of comprehensive health insurance.
Comprehensive health insurance has been a difficult issue for many European migrants. European students and “financially self-sufficient” people and their family members have been historically required to hold this (entitlement to NHS healthcare does not count), and if they have not held it for the required period this has prevented them from obtaining settlement. Some people (eg European partners of British citizens) may have been deemed to be “financially self-sufficient” without realising it, and thus also required to hold comprehensive health insurance without realising that either.
The Home Office has frequently indicated that they intend to drop this requirement and now it seems that it may be happening. We must however strongly caution our readers about this. Firstly, these new rules are only a pilot scheme. When the scheme is fully implemented there is no guarantee that the requirements will be the same. And, secondly, it is only those lucky people in Liverpool who can take advantage of the scheme at the moment.
But the outlook about this is promising, and it may well be that comprehensive health insurance will disappear off the agenda. The general tone of the new rules and associated guidance is liberal, and it is evident that the Home Office wants to treat Europeans and their family members nicely. As the Home Secretary Sajid Javid kindly explains in his foreword to the Statement of Intent: “The Government values highly the contribution that EU citizens and their family members have made to the UK and the many ways in which they have enriched our society”.